Show Us the 'War Power'!

THEIR NAME IS LEGION

by Joseph Stromberg

I
do not mean, by the odd title I have chosen, to suggest there are no war powers,
plural, to be found in this fair land of freedom. Far from it. "There's a lot
of it about," as the Brits were saying a decade ago, even if no one quite knew
what that phrase meant. That was the joke, I guess.

So,
as a matter of practice subject to endless positivist-style testing, verification,
and falsification, there must be zillions of actual war powers all over the place.
I doubt that anyone has actually counted them. Under the Enabling Act of September
12, 2002, and subsequent "legislation," the President of the World can probably
have the Spice Girls arrested, build a barbed-wire enclosure around Palm Beach
County, and enjoin Aborigines from going walkabout, if  in his considered
opinion  these steps are needed in the "War on Terror."

So
I do not doubt that, as a factual matter, there is a lot of war power about, broken
up into useful bits waiting to implemented. My question is, Can anyone who believes
in this sort of thing give us any good reason for believing that this vast array
of undefined power has anything to do with the Constitution as actually written
and ratified? I think they would have some trouble doing that.

FIRST
IMPRESSIONS

Edward
S. Corwin's Total
War and the Constitution(New York: Alfred A. Knopf, 1947) helps set some
of the issues in perspective. Here, the distinguished jurist and constitutional
historian treated the historical growth of the so-called war power. He noted that
the first line of Article II: "The Executive power shall be vested in a President
of the United States of America," is not very conclusive. On a common-sense view,
this seems to mean that whoever held the soon-to-be-overinflated office would
"execute" the laws made by Congress.

Thus
there is no blob-like grant of "executive power." The president is a glorified
doorman, constable, and occasional general, when Congress declares a war. Hardly
an office worth the time of anyone on The West Wing.

Alexander
Hamilton wrote in The
Federalist (#69)
that even in war, the president's power "would amount to nothing more than the
supreme command and direction of the military and naval forces, as first General
and Admiral of the Confederacy" (quoted, p. 14). Not much cosmic rulership there.
No one need deface some mountain side on that basis, unless a president did a
really good job of actually defending the actual country.

TRANSFORMING
IS NOT THE SAME AS 'SAVING'

It
was Lincoln, more than anyone else who invented the now-standard conception of
an immeasurable War Power inherent in the Office of president. (Please bear with
the sham 18th-century capitalization.) His absurd, cobbled-together
theory rested on the mere juxtaposition of two clauses, the one that enjoins the
president to see that the laws are enforced and the now-sanctified commander-in-chief
clause. Congress let Lincoln's various initiatives slide and is therefore said
to have "ratified" them, thereby yielding new powers for the presidency. (See
Corwin, pp. 16-22.)

As
Raoul Berger has written, neither clause was a grant of power, and two nothings
equal nothing.

Anyway,
this is what is called a "living constitution"; it is quite a bit like having
no constitution. A fitting companion to Lincoln's inventions was General
Orders #100, drawn up by the immigrant quasi-Hegelian political philosopher Francis
Lieber, for the Union War Department. Buried in article after article of humane-sounding
detail, the Orders allowed their own violation whenever "military necessity" required
such, in the opinion of the commander on the scene. This was very much the same
as Lincoln's view of the Constitution.

For
the "small" price of a transformed Constitution  just ask Mr. Winik 
the union was "saved."

THE
FRANCO-AMERICAN REVOLUTION

The
"civil war" was the North American counterpart of the French Revolution. Why might
someone say that? Precisely because the war instantiated the French revolutionary
doctrine of the integral Nation to which anyone and anything might be sacrificed,
indeed must be sacrificed given a big enough emergency.

That
in itself ought to be a strong argument against nationalism. It is why in the
1920s the Vatican excommunicated the French rightist Charles Maurras. Maurras
exalted an eternal, integral French nation over all else in the world. The Church
saw this as a neo-pagan heresy. It was precisely that.

ROUNDING
OFF LINCOLN'S INNOVATIONS

Corwin
was interested in learning how, at the level of legal doctrine, we had gone from
the idea of delegated and enumerated powers to an all-encompassing war power.
He found that the Supreme Court had done its part in the process. Thus: "Shortly
following World War I the Court, speaking by Chief Justice White, declared 'the
complete and undivided character of the war power' to be 'indisputable'...." (p.
36).

Even
worse, in the 1936 Curtiss-Wright case, Justice Sutherland discovered that in
the American Revolution the sovereign prerogative of the English King had lighted
on the shoulders of the American union by some mysterious path. This is not quite
the aquatic farce involving a watery tart with a penknife, mentioned in Monty
Python and the Holy Grail, but it is close enough. Evidently, an unspecified War
Power extra-constitutionally underlay the confederacy, passing onto the presidency,
as soon as that office was available to use it.

(And
some people find the notion of secession to be an importation from outside the
Constitution!)

BAD
OLD DOCTRINE OR BAD NEW DOCTRINE?

Corwin
wrote that Alexander Hamilton had not exactly been consistent in his comments
on what powers the proposed federal government would dispose of in wartime. In
Federalist
#23 Hamilton reasoned that infinite dangers implied infinite powers to meet
them (Corwin, p. 35). He might have mentioned the infinite powers a bit more often,
if he believed in them, but I suppose he wanted to soothe the ratifying sheep.

Now,
the infinite powers in question might rest with Congress and not with the president,
in which case Hamilton's view here is reasonably consistent with what he said
elsewhere.

I
think the real question is whether or not we want anyone, at any time, to have
a bottomless pit of power over people's lives, property, and the rest. The question
arises "even in"  or especially in  wartime, which is precisely when
such a monstrous claim is most likely to be urged on us. John Taylor of Caroline's
critique of John Marshall's jurisprudence rested on a denial that the American
Constitution knew any powers whatsoever but those that were clearly enumerated
and granted in the document by consent of the ratifying states. Marshall's deductions
from theories of sovereignty did not impress Taylor.

Similarly,
Patrick Henry warned in the Virginia ratifying convention that under a broad construction
of war powers in the proposed Constitution, ambitious presidents might do virtually
anything tyrannical that came to mind under the plea of necessity. Now I must
concede that a body of doctrine existed under English law in relation to wars
and emergencies which was well adapted to the future construction of the various
empirically verifiable war powers that the present administration is riding down
the historical turnpike paved with good (so they say) intentions.

I
grant that Congress may have originally held claim to such powers, if they
existed at all. Given the initially bad doctrine, it was perhaps safer in those
hands than in the hands of One Man and his nuclear football. Corwin's later chapters
detail the further engrossment by presidents of these powers, whatever their origin.
Naturally, he spends much time on the shenanigans of FDR in bringing about our
entry into the war and then in running the colossal national-socialist war effort.

By
the time Corwin concluded his book, he was not very optimistic about the future.
Over time, actual presidential practice had called forth the doctrine that it
was possible  constitutionally  for a president to function as a dictator
during war. His extraordinary powers  for which there was still no textual
support  ceased to exist in time of peace. Corwin feared because of World
War II, the "wartime constitution" had so infected the "peacetime constitution"
that the above doctrine, such as it was, was no longer of any consequence.

It
is interesting that for some reason a new edition of Clinton Rossiter's hymn of
praise to presidential dictatorship, entitled, strangely enough, Constitutional
Dictatorship, is being republished. It would be far better for someone
to re-issue Corwin.

That
said, I have to add that a far more radical critique than Corwin's seems necessary
in the present situation. Someone should explain exactly what "war" is being carried
on today. It would be nice to see a declaration of war other than the Enabling
Act of 9/12, which on the face of it gives George W. Bush more powers (whatever
their source) than the German Reichstag gave to a subsequently famous Austrian
immigrant in April of 1933.

It
would be interesting to know if Congress itself had such powers to "delegate."
But there I go dreaming again.

It
would be useful, in fact, to know whether or not the whole constitutional project
has been a complete waste of time, or alternatively, whether or not the high-toned
Federalist gentry  Hamilton, Madison, Jay, etc.  actually intended
to create the monstrous concentration of power with which we now contend. Nothing
short of an unflinchingly radical critique of US political institutions and their
history will bring us anywhere near the truth. Our problems did not begin with
Bill Clinton, FDR, or even Woodrow Wilson.

Meanwhile,
POTUS, the million-megaton gorilla, can do what he wishes. He apparently wishes
to bring us, simultaneously, advanced social democracy, victimology, and perpetual
war for perpetual peace. Could Al Gore have been any worse?

Joseph R. Stromberg has been writing for libertarian
publications since 1973, including The Individualist, Reason,
the Journal of
Libertarian Studies, Libertarian Review, and the Agorist
Quarterly, and is completing a set of essays on America's wars.
He was recently named the JoAnn B. Rothbard Historian in Residence at
the Ludwig von Mises Institute.
His column, "The Old Cause," appears alternating Fridays on
Antiwar.com.

Reproduction of material from any original Antiwar.com pages
without written permission is strictly prohibited.
Copyright 2003 Antiwar.com